This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-98-51

In the Matter of the Welfare of:
S.A.G., Child.

Filed September 8, 1998
Affirmed
Norton, Judge*

Dakota County District Court
File No. J49765238

Leslie J. Rosenberg, Special Assistant State Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501; and

James C. Backstrom, Dakota County Attorney, Charles A. Diemer, Mary C. Misurek, Assistant County Attorneys, Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,* and Norton, Judge.

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

S.A.G. was convicted by a jury of criminal vehicular homicide. On appeal, he challenges his conviction on the grounds that (1) the police failed to preserve potentially useful evidence, (2) the trial court refused to instruct the jury that it could draw an adverse inference from the state's failure to preserve the evidence, (3) the prosecutor committed prosecutorial misconduct during closing argument, and (4) the evidence is insufficient to prove that he was grossly negligent within the meaning of Minn. Stat.  609.21 (1996). We affirm.

FACTS

Shannon Nyberg was killed on October 5, 1996, when a stolen Ford Bronco driven by S.A.G. crashed at an exit ramp on highway 35W. Nyberg was a passenger in the car. S.A.G. told troopers and paramedics at the scene that he had been driving too fast. He also stated that he had a learner's permit but had not yet received his driver's license.

On October 6, trooper Richter inspected the Bronco and found no vehicle defect. He also calculated that the Bronco was travelling at a minimum speed of 65 miles per hour at the time of the crash. The advisory speed limit at the ramp where the accident occurred was 20 miles per hour. On the basis of this information, trooper Richter concluded that the crash was caused by excessive speed and authorized the Bronco's release to an insurance salvage company.

The Bronco remained with the salvage company until November 11. It was then transferred to a junkyard, where it was destroyed on April 4, 1997, eight days after S.A.G.'s counsel filed a discovery demand to inspect the Bronco. The junkyard did not notify S.A.G. or the state before it destroyed the car. As a result, S.A.G. did not have an opportunity to inspect the car before it was destroyed.

S.A.G.'s experts testified that they could not determine what caused the crash based on photographs of the Bronco alone. They were able to calculate, however, that the Bronco was travelling at a speed of 53 miles per hour when it began to leave scuff marks and 45 miles per hour when it left the road and became airborne.

At trial, the Bronco's owner confirmed trooper Richter's conclusion that the car was in good condition. He had new tires put on in January of 1996 and new brakes installed in September of 1996, only one month before the accident. Phillip Schmelzer, a friend of S.A.G.'s and a passenger in the Bronco, also testified that the Bronco was in good condition when he and S.A.G. stole it. In addition, he indicated that S.A.G. was not experienced at driving a car with a manual transmission and that both he and Nyberg told him to slow down. He stated that the speedometer registered 45 miles per hour the last time he looked at it.

The jury convicted S.A.G. of criminal vehicular homicide on the basis of this evidence.

D E C I S I O N

I.

S.A.G. first claims that the state's failure to preserve the Bronco violated his due process right to a fair trial and warrants reversal of his conviction. We disagree.

The Due Process Clause requires that criminal defendants be afforded a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984). To safeguard that opportunity, the courts impose upon the government a duty to deliver exculpatory evidence into the hands of the accused. Id. The government's duty is not absolute, however. Rather, it is limited to evidence that "might be expected to play a significant role in the suspect's defense." Trombetta, 467 U.S. at 488, 104 S. Ct. at 2534. To meet this constitutional standard of materiality, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992) (quoting Trombetta, 467 U.S. at 489, 104 S. Ct. at 2354).

When the evidence is material, the good or bad faith of the state is irrelevant. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337 (1988). When, however, "no more can be said [of the evidence] than that it could have been subjected to tests, the results of which might have exonerated the defendant," the defendant must show bad faith on the part of the state to establish a due process violation. Id.; see also Schmid, 487 N.W.2d at 541.

The state's failure to preserve the Bronco did not violate S.A.G.'s due process right to a fair trial. First, the Bronco had no apparent exculpatory value. Trooper Richter carefully examined it and found no defect that could have exculpated S.A.G. His conclusion was corroborated by Phillip Schmelzer and the Bronco's owner, both of whom testified that the car was in good condition at the time it was stolen. All that could be said of the Bronco is that it could have been tested further and that further tests might have exonerated S.A.G. The mere possibility that additional tests could have exculpated S.A.G., however, standing alone, is not enough to satisfy the standard of constitutional materiality needed to trigger the state's duty to preserve evidence. See Trombetta, 467 U.S. at 489, 104 S. Ct. at 2354.

Second, S.A.G. failed to demonstrate that the Bronco had potential exculpatory value despite ample opportunity to do so on cross-examination. See State v. Friend, 493 N.W.2d 540 (Minn. 1992) (state's failure to preserve victim's fingernail scrapings was not reversible error because defendant failed to demonstrate scrapings had exculpatory value despite ample opportunity to cross-examine pathologist regarding procedures he followed during testing). S.A.G.'s counsel cross-examined Trooper Richter extensively about the adequacy of the inspection and the soundness of his conclusion. In so doing, he raised the possibility in the jury's minds that the Bronco was potentially exculpatory. The jury chose not to believe him.

Even if the Bronco was potentially exculpatory, however, its release did not violate S.A.G.'s due process rights because trooper Richter acted in good faith. See United States v. Valenzuela Bernal, 458 U.S. 858, 872, 102 S. Ct. 3440, 3449 (1982) (holding that the government's deportation of two illegal aliens did not violate due process because it was based "upon the Executive's good faith determination that [the witnesses] possess[ed] no evidence favorable to the defendant").The record contains no evidence that trooper Richter released the Bronco to gain some tactical advantage or to prejudice S.A.G. Instead, it shows that he released the Bronco on the basis of his good faith determination that the Bronco possessed no evidentiary value to S.A.G. in a criminal prosecution.

Therefore, we conclude that the release of the Bronco did not violate S.A.G.'s due process rights. Our conclusion should not be construed, however, as an endorsement of the state's conduct in this case. The state's release of evidence on the belief that the evidence has no exculpatory value is bad practice. We have previously admonished that "[p]olice officers who often investigate a case in its earliest stages, may be unable to foresee the legal theories the prosecution will pursue and are often in a precarious position to determine whether evidence is potentially exculpatory, particularly as viewed by defense counsel." Schmid, 487 N.W.2d at 541-42. In this case, the state disregarded this admonition. Moreover, the state inexplicably made no effort to determine the Bronco's whereabouts after receiving defendant's discovery notice, which contain the standard language relative to examination of material evidence. In this court's view, the discovery notice triggered the state's duty, at a minimum, to make an effort to locate the evidence. Had the state made such an effort, it may have been able to prevent the Bronco's destruction during the eight-day period between the filing of the discovery notice and the destruction of the car. Nonetheless, in this case, in light of the record as a whole, the Bronco's release did not prejudice S.A.G. and does not, therefore, constitute reversible error.

II.

S.A.G. next claims that the trial court erred in refusing to instruct the jury that it could draw an adverse inference from the state's failure to preserve the Bronco. We disagree.

The trial court has broad discretion in determining what instructions to give the jury. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985). It will be found to have abused its discretion only if its failure to give a requested instruction materially prejudices the defendant's rights. Id. A defendant's rights are not materially prejudiced when the evidence does not support the proposed instruction. Id.

The trial court did not abuse its discretion in this case because the evidence does not support the proposed instruction. The evidence shows that Trooper Richter based his decision to release the Bronco on a good-faith determination that it had no evidentiary value to S.A.G., rather than a determination that it did not support the state's theory of the case. The trial court, therefore, did not abuse its discretion in refusing to instruct the jury that it could draw an adverse inference from the Bronco's release.

III.

S.A.G. next argues that the prosecutor committed misconduct during closing argument by (1) commenting on S.A.G.'s failure to testify and call witnesses, (2) interjecting his opinion and otherwise commenting on the credibility of witnesses, and (3) misstating the law on excited utterances. We reluctantly disagree.

Contrary to the prosecutor's contention at oral argument and in his brief, we do not regard his closing argument as "a model to be followed by all prosecutors." On the contrary, we regard the prosecutor's closing argument as being as close to prosecutorial misconduct as this court will tolerate before reversing a conviction for prophylactic reasons alone. We nevertheless affirm the jury's verdict on believing it was not attributable to the prosecutor's misconduct but was instead based on evidence beyond a reasonable doubt that S.A.G. was grossly negligent.

A prosecutor may not seek a conviction at any price. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). The state's closing argument must be based on the evidence introduced at trial and the reasonable inferences from that evidence. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). Comments that inflame the jury's passions and prejudices against the defendant, or divert the jury's attention from its fundamental role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt, constitute misconduct. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997); Salitros, 499 N.W.2d at 819.

Not every instance of misconduct, however, warrants a new trial. Ashby, 567 N.W.2d at 27. A defendant is not entitled to a new trial, for instance, when the verdict is "unattributable to the error." Id. at 28 (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996)).

Ultimately, whether prosecutorial misconduct warrants a new trial "is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect." Ashby, 567 N.W.2d at 27. The reviewing court may reverse only if the misconduct, "viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant's right to a fair trial was denied." State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).

A. Comments on S.A.G.'s failure to testify and call witnesses.

S.A.G. first asserts that the prosecutor committed misconduct during closing argument when he shifted the burden of proof to the defendant by suggesting that he had a duty to testify and call witnesses. S.A.G. quotes the following passages as examples of the state's misconduct:

[Y]ou are back to the same cardinal rule again, speculation, because you never heard anybody from the witness stand say there was braking. You never heard anybody from the witness stand say[,] ["]There is a defect in the vehicle.["] You never heard anybody from the witness stand say, "I [tried to] brake, but I couldn't." You never heard anybody from the witness stand say, "I tried to steer, and the steering went out." Do you know why? Because that's not what happened.

* * * *

In neither of those conversations [with the troopers and the paramedics at the scene] did [S.A.G.] give any indication that he had a problem with any mechanical defect to this vehicle. It is just not there.

* * * *

If there [were] anything wrong with the car, you can bet that one of the experts could have found it. They didn't. There is nothing wrong with the car, and [its] release had no impact on your ability to make a decision in this case.

A prosecutor may not comment on a defendant's failure to testify or call witnesses. State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). The state bears the burden of proving all the elements of a crime beyond a reasonable doubt and is prohibited from shifting the burden of proof to a defendant to prove his innocence. Id. The prosecutor may comment on the lack of evidence in support of the defense's theory, however, without shifting the burden of proof to the defendant. Id.; State v. Race, 383 N.W.2d 656, 664 (Minn. 1986). When the prosecutor's comment on the lack of evidence indirectly suggests that the defendant has a duty to testify because the defendant is the only person who could have provided the evidence needed, the comment constitutes reversible error if it is extensive, if it stresses the defendant's silence per se as a basis for conviction, and if the record contains grounds for acquittal. State v.Whittaker, 568 N.W.2d 440, 451 (Minn. 1997).

In this case, the prosecutor committed misconduct when he said:

You never heard anybody from the witness stand say, "I tried to brake, but I couldn't." You never heard anybody from the witness stand say, "I tried to steer, and the steering went out."

These comments implicitly chastised S.A.G. for not taking the stand and suggested that he had a duty to prove himself innocent. They do not warrant reversal, however, for several reasons. First, defense counsel did not object to these comments or seek a curative instruction. The failure to object or seek a curative instruction "weighs heavily" against reversal and it implies that the prosecutor's comments were not prejudicial. State v. Ives, 568 N.W.2d, 710, 713 (Minn. 1997). A curative instruction might have ameliorated the effect of the prosecutor's comments. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). Second, the trial judge instructed the jury that the state had the burden of proving the defendant guilty beyond a reasonable doubt. The trial court's instructions lessened any detrimental effect the prosecutor's comments may have had. Third, the evidence against S.A.G. was strong. He admitted having been driving too fast. His admission was corroborated by the physical evidence, the testimony of all the expert witnesses, and Phillip Schmelzer's testimony that S.A.G. was driving too fast. The strength of the evidence in this case is such that the prosecutor's comments regarding what S.A.G. did not say on the stand were unlikely to have substantially influenced the jury or prejudiced S.A.G.

The remaining comments are simply comments on the defense's theory and thus not improper under Whittaker. Part of the defense strategy was to prove, or at least suggest, that the crash was caused not by excessive speed, but by something else, possibly defective brakes. The prosecutor anticipated defense counsel's theory of the case and pointed out that the record contained no evidence to support it. Evidence of a vehicle defect did not necessarily have to come from S.A.G. himself. The prosecutor's comments on the lack of evidence, therefore, did not indirectly suggest that S.A.G. had a duty to testify.

Even if the prosecutor's comments indirectly suggested that S.A.G. had a duty to testify, they were harmless error because they were brief, did not stress that an inference of guilt from silence is a basis for a conviction, and the evidence in the record does not support a verdict of acquittal. See Whittaker, 568 N.W.2d at 451-52; State v. Naylor, 474 N.W.2d 314, 321 (Minn. 1991); State v. Schneider, 311 Minn. 566, 249 N.W.2d 720, 722 (1977). Moreover, defense counsel did not object and the trial court instructed the jury that the state had the burden of proof and the defendant was under no obligation to defend himself. The prosecutor's comments were merely a permissible challenge to S.A.G.'s defense. They do not, therefore, warrant reversal.

B. Comments on the credibility of witnesses

S.A.G. also asserts that the prosecutor improperly commented on the credibility of witnesses when he made the following statements:

So, he is confirming what Richter is saying; and what else is

Lofgren doing? He is confirming that what Mr. Berke has to

to say is pure, unbridled manure.

* * * *

* * * [A]nd when it comes to Mr. Berke, you will come to the

conclusion I have got no trust in that guy whatsoever. Mr.

Berke, when I use the term ["]I["] - I am speaking coming

from your eyes.

* * * *

* * * [T]here was no evidence whatsoever that vehicle failure contributed to this case. If you want to believe Lanny Berke, as discredited as he was, he is the only one that has any little smidgen of [evidence that] anything [was] wrong with this vehicle, and you have got to decide how credible he is.

Prosecutors may not personally endorse the credibility or lack of credibility of witnesses. Porter, 526 N.W.2d at 364; State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984). Prosecutors are free to comment, however, on the credibility of witnesses in light of the evidence. The first two statements S.A.G. characterized as improper are simply comments on the credibility of witnesses in light of the evidence. They do not reflect the prosecutor's opinion or otherwise improperly comment on the witnesses' credibility. The last statement would have been improper had the prosecutor not corrected himself. The prosecutor told the jurors they would come to the conclusion, "I got no trust in that guy whatsoever." He immediately corrected himself and made it clear to the jury that by "I," he meant "them." The prosecutor misspoke. The supreme court has said that "[a] closing argument must be proper, not perfect. Unartful statements inevitably occur in the midst of a heated and impassioned closing argument, even among the best of orators." Atkins, 543 N.W.2d at 648. Here, the prosecutor's statement was unartful but not misconduct. Moreover, most of the prosecutor's credibility comments followed the following admonition to the jury:

You are the one[s who] have to decide the credibility of witnesses, and you will have those instructions with you that the judge just read to you about the credibility of witnesses, and you can use all of those, and you should use them as you see fit for each witness as you want to.

Thus, even if the prosecutor's comments on the witnesses' credibility were error, they were harmless beyond a reasonable doubt.

C. Misstatement of the law

Finally, S.A.G. claims that the prosecutor committed misconduct when he misstated the law on excited utterances. Even assuming that the prosecutor actually misstated the law, his comments are not reversible error. Misstatements of law constitute misconduct. See State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993). The proper remedy for such misconduct, however, is a curative instruction, not reversal of the jury's verdict. Id. The supreme court has stated that "[a]ny time a prosecutor makes [a] misstatement of law, the defense is free to object and ask for a curative instruction." Id. Here, if defense counsel had objected to the prosecutor's alleged misstatement of the law and asked for a curative instruction, the trial court may well have agreed to give the requested instruction. Even in the absence of a curative instruction, the prosecutor's misstatement was not prejudicial because both the prosecutor and the judge told the jury that the trial court had the exclusive responsibility of instructing them on the law and that they were required to follow the judge's instructions. Therefore, it is extremely unlikely that the jury based its verdict on the prosecutor's mischaracterization of the law.

IV.

S.A.G.'s last claim is that his criminal vehicular homicide conviction should be reversed because the evidence in the record is insufficient to support the jury's finding that he was grossly negligent. We disagree.

A person is guilty of criminal vehicular homicide if he causes the death of another human being by operating a motor vehicle in a "grossly negligent" manner. Minn. Stat.  609.21, subd. 1(1) (1996). "Grossly negligent" within the meaning of Minn. Stat.  609.21 means extremely negligent or without even scant care, but falls short of the reckless disregard of probable consequences that constitutes willful and intentional conduct. State v. Meany, 262 Minn. 491, 496, 115 N.W.2d 247, 252 (1962). It requires "the presence of some egregious driving conduct coupled with other evidence of negligence." State v. Plummer, 511 N.W.2d 36, 39 (Minn. App. 1994) (quoting State v. Miller, 471 N.W.2d 380, 384 (Minn. App. 1991)). It involves a "heedless and palpable, though not intentional, violation of a legal duty respecting the rights of others." State v. Anderson, 247 Minn. 469, 476, 78 N.W.2d 320, 325 (1956).

When the sufficiency of the evidence is challenged on appeal, the reviewing court must affirm the jury's verdict if the jury reasonably could have found each element of the charged crime. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The court must view the evidence in the light most favorable to the prosecution. Id. It must also recognize, however, the state's burden to prove the elements of the crime beyond a reasonable doubt. See id.

The jury could reasonably have found that S.A.G. was grossly negligent. The evidence, viewed in the light most favorable to the prosecution, establishes "egregious driving conduct coupled with other evidence of negligence." Plummer, 511 N.W.2d at 39. It shows that S.A.G. was driving at a speed at least 27 miles per hour higher than the recommended speed limit, possibly more. Driving 27 miles per hour in excess of the speed limit on an exit ramp is egregious driving conduct. This conduct was coupled with other evidence of negligence. S.A.G. undertook to maneuver a 20-miles-per-hour curve at a much higher speed even though he was not an experienced driver, he was not experienced in driving a car with a manual transmission, and he had been asked by his passengers to slow down. Given these circumstances, his conduct involved a "heedless and palpable" violation of a legal duty respecting the rights of others and was, therefore, grossly negligent. Anderson, 247 Minn at 476, 78 N.W.2d at 325.

Moreover, the hypothesis of wrongdoing short of gross negligence is not rational. The jury could have reasonably rejected it and opted to find instead that a 16-year-old child who is inexperienced at driving and chooses to drive over the speed limit, despite requests from his passengers to slow down, is grossly negligent. See State v. Boldra, 292 Minn. 491, 195 N.W.2d 578 (1972) (evidence indicating that defendant ignored stop sign and drove his automobile into intersection at speed of 50 miles per hour or more was sufficient to sustain conviction of criminal negligence in operation of motor vehicle resulting in death); State v. Tinklenberg, 292 Minn. 271, 194 N.W.2d 590 (1972) (evidence that defendant drove at speed greatly in excess of speed limit, lacked control over her automobile, and was not attentive supported jury's finding that defendant was grossly negligent and therefore guilty of death by criminal negligence). The state, therefore, met its burden of proving that S.A.G. was grossly negligent and the jury's verdict should not be disturbed.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving pursuant to Minn. Const. Art. VI,  10.